22 June 2015

SCOTUS Shows Interest In Conditions Of Incarceration

In Kingsley v. Henderdrickson, the U.S. Supreme Court resolved a circuit split by holding that the standard of civil liability for excessive force for people incarcerated prior to trial and conviction under the Fourteenth Amendment's due process clause ("objective unreasonableness") was distinct from and lower than the standard of civil liability for excessive force for people incarcerated pursuant to a conviction ("reckless disregard for the prisoner's safety and rights") under the Eighth Amendment cruel and unusual punishment clause.

This is not as bold as step as Slate.com suggests, because almost every federal appeals court circuit other than the 7th Circuit already followed the standard set forth in Kingsley. It is disappointing to see that Chief Justice John Roberts, and Justices Clarence Thomas and Antonin Scalia were unwilling to join the consensus on what should have been a very easy case legally.

But, Kingsley does set a clear national standard and entrenches a distinction between the treatment of pre-trial and post-conviction detainees in U.S. jails.

By itself, this is unremarkable, but it is notable when taken together with the off topic concurring opinion of Justice Kennedy in David v. Ayala, in which Justice Kennedy invites future judicial review of prolonged solitary confinement for everyone from inmates on death row (as in the case before the Court) to poor New York kids in pretrial detention for years because they can't make bail.

The full text of the June 18, 2015 opinion is worth restating here for reference purposes:

JUSTICE KENNEDY, concurring.
My join in the Court’s opinion is unqualified; for, in my view, it is complete and correct in all respects. This separate writing responds only to one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions presented by this case.

In response to a question, respondent’s counsel advised the Court that, since being sentenced to death in 1989, Ayala has served the great majority of his more than 25 years in custody in “administrative segregation” or, as it is better known, solitary confinement. Tr. of Oral Arg. 43–44. Counsel for petitioner did not have a clear opportunity to enter the discussion, and the precise details of respondent’s conditions of confinement are not established in the record. Yet if his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. Ibid.; see also Wilkinson v. Austin, 545 U. S. 209, 218 (2005); Amnesty International, Entombed: Isolation in the U. S. Federal Prison System (2014). It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison. Ibid.

The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators. Eighteenth-century British prison reformer John Howard wrote “that criminals who had affected an air of boldness during their trial, and appeared quite
unconcerned at the pronouncing sentence upon them, were struck with horror, and shed tears when brought to these darksome solitary abodes.” The State of the Prisons in England and Wales 152 (1777). In literature, Charles Dickens recounted the toil of Dr. Manette, whose 18 years
of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or appreciation for time or his surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a
work bench and tools to make shoes, a type of diversion no doubt denied many of today’s inmates.

One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death, solitary confinement bears “a further terror and peculiar mark of infamy.” In re Medley, 134 U. S. 160, 170 (1890); see also id., at 168 (“A considerable number of the prisoners
fell, after even a short [solitary] confinement, into a semi-fatuous condition . . . and others became violently insane; others, still, committed suicide”). The past centuries’ experience and consideration of this issue is discussed at length in texts such as The Oxford History of the Prison: The Practice of Punishment in Western Society (1995), a joint disciplinary work edited by law professor Norval Morris and professor of medicine and psychiatry David Rothman that discusses the deprivations attendant to solitary confinement. Id., at 184.

Yet despite scholarly discussion and some commentary from other sources, the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. See, e.g., Brown v.
Plata, 563 U. S. ___ (2011); Hutto v. Finney, 437 U. S. 678, 685 (1978) (“Confinement in a prison or in an isolation cell
is a form of punishment subject to scrutiny under the Eighth Amendment”); Weems v. United States, 217 U. S. 349, 365–367 (1910). Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into account,
when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: “In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your
execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or
indifference.

Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest
that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.

There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular. See, e.g., Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, p. 26 (detailing multiyear solitary confinement of Kalief Browder, who was held—but never tried—for stealing a backpack); Schwirtz & Winerip, Man, Held at Rikers for 3 Years Without Trial, Kills Himself, N. Y. Times, June 9, 2015, p. A18. And penology and psychology experts, including scholars in the legal academy, continue to offer essential
information and analysis. See, e.g., Simon & Sparks, Punishment and Society: The Emergence of an Academic Field, in The SAGE Handbook of Punishment and Society (2013); see also Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub.
Health 442 (March 2014); Metzner & Fellner, Solitary Confinement and Mental Illness in U. S. Prisons: A Challenge for Medical Ethics, 38 J. Am. Academy Psychiatry and Law 104–108 (2010).

These are but a few examples of the expert scholarship that, along with continued attention from the legal community, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must
have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total
isolation exact a terrible price. See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors).
In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time.

We can expect to see petitions brought to the Court in response to this opinion, both on solitary confinement and excessive pre-trial confinement, and can expect to see a receptive Justice Kennedy together with the four liberal justices, ready to grant relief in response to them.

The blog Solitary Watch sums up some of the leading U.S. Supreme Court cases on the topic.

Some theories that one might advance:

* Solitary confinement on more than a brief, episodic basis in response to "hot" disciplinary issues related to control of a facility is punishment of a form not authorized by a jury in excess of what is reasonably expected when a sentence to a crime for a term of years is handed down.

* Solitary confinement on more than a brief, episodic basis in response to "hot" disciplinary issues related to control of a facility is a punishment not authorized for pre-trial detainees.

* Prolonged solitary confinement in its current form constitutes cruel and unusual punishment that violates the 8th Amendment when applied to juveniles, and in particular to juveniles in pre-trial confinement.

* Prolonged solitary confinement in its current form constitutes cruel and unusual punishment that violated the 8th Amendment in light of our growing understanding of its consequences and the way that it is used and applied.

Each of these theories, implicitly, offers the possibility that "solitary confinement lite" that is less harsh, might be permissible to maintain order or as a form of protective custody, even if it is cruel and unusual in its current customary form (e.g. a normal single sized cell, access to clothing and basic means of entertainment, more outside exercise time, and normal food, non-contact access to visitors for example by telephone or Face time).

Legislatures or jail and prison officials might be able to implement other kinds of policies without judicial intervention. For example, the legislature might adopt a statute setting forth the grounds for which solitary confinement could be imposed for a duration of a particular length, and setting minimum standards for the conditions of solitary confinement, and provide for judicial review of violations of those standards. Jail or prison officials could probably change solitary confinement policies simply by decree where no other legislation is in place.

On Pre-Trial Confinement Conditions and Duration

Another issue relates to pre-trial confinement and the right to a speedy trial, particularly for misdemeanors or minor felonies.

This is a huge issue. About half of people incarcerated in jails (and about 21.5% of all persons incarcerated on any given day in the U.S. as of December 31, 2010) at any one time are pre-trial detainees, and most are face misdemeanor or minor felony charges upon which there is a significant chance that the ultimate sentence will be to probation, fines and other non-incarceration sentences, if the defendant is convicted at all.

U.S. incarceration as of December 31, 2010 was (figures cited from link below which used the source linked which has since produced updated numbers for more recent years showing a modest decline):

* 2,266,832 prisoners from a total population of 310,640,000 (730 per 100,000).
* Jails 866,782 (including about 487,369 pre-trial detainees - 56% of all persons in jail)
* State Prisons: 1,140,500
* Federal Prisons: 126,863

* Under the most limited version of this theory, all charges should be dismissed on speedy trial grounds in any case in which time served has exceeded the maximum possible sentence for the offense, regardless of the formal calculations that go into speedy trial statutes and the defendant's consent to delays. For example, if the maximum sentence for shoplifting a backpack is 3 months, pre-trial detention on those charges should end after 3 months.

* Under more expansive versions of this theory, this should apply when time served is a majority of the maximum sentence, or when time served exceeds some smaller portion of the sentence (e.g. 1/3rd, 1/4th, 1/5th, 1/10th), or when time served exceeds the minimum sentence for the offense (particularly in the case of felonies that often have minimum and maximum sentences), or when time served exceeds the customary sentence in practice for similar offenses. In the example above, the maximum pre-trial incarceration might be 6 and a half weeks under the majority of the sentence rule, and less under other rules.

Under either of these theories, good time in actual incarceration should count as time served in pretrial detention just as it would in post-conviction detention.

* More general rights for pre-trial detention conditions could also be established, requiring, basically, a significant difference in conditions of incarceration prior to trial and after conviction so that the former is clearly not punitive in nature. For example, a right to non-attorney visitors, to access to one's own property while in prison unless shown to be a safety issue, a right to be addressed by name, a right to due process before disciplinary sanctions are imposed, a right to reasonable protections from fellow inmates upon a good faith expression of fear of abuse, etc.

* Juvenile pre-trial detainees, in turn, might have extra protections such as a right to regular visits from parents and guardians (even allowing parents and guardians to stay with the juvenile pending trial), a right not to be housed with adults, and shorter speedy trial deadlines that reflect the time urgency of developing juveniles relative to adults.

On Bail

Another related theory would be that bail should never exceed the maximum fine and court costs upon conviction plus the expected earnings of the defendant during the time period of maximum incarceration for the offense. So, for example, if a full time, $10 an hour employee was detained for an offense punishable by up to 6 months in jail and a $1,000 fine plus $250 in court costs, the maximum bail would be $11,250.

Another theory on bail might be that pre-trial detention may only be authorized in misdemeanor cases where a defendant is indigent when there is specific individualized evidence showing a likelihood of flight or harm to the public prior to the hearing date, such as a previous failure to appear warrant, a lack of a fixed residence, a restraining order in existence at the time of arrest, or something similar.

Again, this could be implemented by policy (and indeed, one of the historically most successful policy changes has been to implement pre-bail hearing screening to allow most defendants to dispense with bail), in the judicial branch, prosecutor's office, or legislatively. In the pertinent part, a 2010 post on this issue at this blog said:

The Pretrial Release program reviews the status of individual inmates to determine who can be released on bonds while they await trial. Denver County Court refers inmates who are judged to be safe to the Pretrial Release program. If this program determines that an inmate is judged safe enough to be in the community, they will be placed on a "personal recognizance bond" which often requires a monetary deposit, an electronic monitor and other safety precautions. So far the program has a success rate of over 82%.

Pretrial release programs in Denver cost $160,000 a year. They reduced the operating costs at the Denver Jail by $1,100,000 a year. Ignoring any impact on construction costs (which Denver has incurred whether it needs the beds or not for the foreseeable future), pre-trail release saves taxpayers about $6.88 for every dollar of program costs.The 82% success rate is comparable to that of defendants on bail bonds. Industry supporters claim that: "We return 85 to 90 percent of all defendants in which we bond to the court system." But, this statistic would include not just defendants who appear in court, but also, defendants who fail to appear and then are brought back to court later on.

A similar program in Manhattan saved taxpayers more than three dollars for every dollar spent on the program. Pre-trial release evaluations take about an hour per case. In the large percentage of cases where it is found to be appropriate, this is far less than the cost of incarcerating that person, even briefly while they are seeking a secured bond.

A program in Lee County, Florida not only saved much more money than the pre-trial release program costs, but also reduced the failure to appear rate from 18% before the program was established to 8% after it was put in place.

The U.S. District Court for the Southern District of Iowa has also recently implemented a pre-trial release program with great success. The program produced impressive results in just two years of implementation, saving $1.7 million, making pre-trial release more frequent, and reducing failure to appear rates and pre-trial new criminal activity:

This is also true closer to home. In Larimer County, Colorado (home to Fort Collins), in 2007, "the rate of defendants failing to appear for court appearances is less than 2 percent for the pretrial program compared with 12.6 percent for bond agents." The budget for Larimer County's pre-trial release program is "$974,000 from the county general fund and $75,000 in client fees," while the program "saved the county $3.5 million last year by facilitating the release and supervision of arrestees who otherwise would be occupying costly jail cells. And . . . the pretrial service resulted in an additional $474,000 savings by working with the probation department to streamline the sentencing process." Thus, pre-trial services in Larimer, County, Colorado saves 4 dollars in taxpayer costs for every dollar it spends, and has a much lower failure to appear rate than defendants on bail bonds. Larimer County elected officials oppose Colorado Proposition 102.

Overall, a 2008 study found that Colorado's pre-trial release programs have some of the lowest failure to appear (averaging under 5%) and re-arrest rates (averaging under 1%) of any programs of this kind in the country, and some of the lowest operating costs. They are "very well regarded by law enforcement, prosecution, and the courts in the jurisdictions they serve." They serve 80% of the population in Colorado.

Jefferson County, Colorado used reductions in incarceration as a result of pre-trial services work to make its jail available to other jurisdictions as a profit center, and its program staff have secured substantial grants to provide its services at below cost, and has returned some budgeted funds to the county general fund.

Even the elected sheriff in conservative El Paso County, which doesn't have a pre-trial release program, opposes Colorado Proposition 102 [which would have "prohibit the release of anyone arrested for a felony or violent misdemeanor, and anyone who is a repeat nonviolent misdemeanor offender on a unsecured bond under the supervision of pretrial services."] and thinks it might be constitutionally flawed:

"It's going to affect our mentally ill population, it's going to affect our indigent population," Maketa said. "In fact, I think it creates such a disparity between people that are indigent and those that are not that it could have some legal challenges."

Mesa County, home to Grand Junction, Colorado, on the Western Slope, has had success using pre-trial release. The Sheriff's Office website notes that: "Beginning January 2003 we began an innovative approach in trying to reduce jail population. The goal was not just to reduce the population, instead to ensure that the right types of people were incarcerated. We began focusing on the Pre-trial and sentenced inmate population."

Douglas County, Colorado, which is a suburban county to the South of Denver and North of Colorado springs, has a pre-trial release program in which the failure to appear rate in 2008 for 499 felony case and 659 misdemeanor cases was just 3%.

It turns out that the quality of pre-trial release program effectiveness has a lot to do with how well its fits best practices in the field. "The county level models indicate that there is surprisingly robust explanatory capacity for the county level variables on failure to appear and rearrest." Well run programs like Colorado's, that adhere to best practices nationally and work to constantly improve their release models, are far more effective than the national average at a highly statistically significant level.

Data arguing that pre-trial release programs are ineffectual often use flawed data, for example, lumping defendants who were not required to post bail or participate in a pre-trial release supervision program with those who were in a pre-trial release supervision program. These apples to oranges comparisons obscure the effectiveness of programs like those in place in Colorado, where the program is particularly well run, and empirically validated instruments are used to determine who should be eligible for release on a personal recognizance bond, rather than mere intuition.

The instruments that pre-trial release agencies use to score criminal defendants and determine if they are appropriate to release before trial without a secured bond don't allow just anyone to be released before trial. Regular studies of how is and is not likely to fail to appear, or to re-offend prior to trial are carried out. The data show that the offense charged and someone's prior record does matter, and that does enter into the assessment. But, ties to the community also have a dramatic impact on the likelihood that someone will fail to appear.

A typical risk assessment instrument, such as one used in Racine County, New York, assigns points to each criminal defendant facing trial based on a variety of factors. Points are assigned for the following circumstances that result in a total score of 0-14 points:Most serious charge is less serious than Misdemeanor or Felony Add 0 pointsMost serious charge is a Misdemeanor Add 1 point Most serious charge is a Felony Add 2 points Charges include a drug offense (felony or misdemeanor) Add 2 points Defendant has a prior conviction Add 2 points Defendant has 2 or more prior convictions Add 1 point Defendant has a prior failure to appear Add 2 points Defendant has a prior arrest/charge while on bail Add 1 point Defendant has not been employed the past 2 years Add 2 points Defendant is not the primary care giver Add 1 point Defendant has not lived at the residence for a year or longer Add 1 point

A score of 0-4 points is low risk, 5-9 points is medium risk and 10-14 points is high risk.

The impact of the nature of the offense on the risk that someone poses, as demonstrated by experience, is sometimes counterintuitive. For example, "being charged with a felony against a person – decreased the odds of a defendant committing pretrial crime and of failing to appear in court." High risk offenders aren't granted the option of pre-trial release without a secured bond. But, experience has shown that someone charged with a violent felony who has no prior criminal record, owns a home, has a job, and has strong ties to the community is much more likely to show up in court, and to not reoffend pending trial, than someone charged with relatively minor offenses who has little to tie him to the community.

In places where these risk assessments are used, like Racine County, pre-trial release failures are similar to those in Colorado, about 5%, and far lower than the national average.

The empirically validated risk assessments done by pre-trial release programs aren't just used to determine who should be released without a secured bond program prior to trial either. They are also used by judges to set bail appropriately in cases where a secured bond will be required, and to determine whether defendants will be eligible for probation if convicted. Requiring a secured bond doesn't help enforce compliance if the bond is set too low, and the pre-trial release assessment instrument helps judges to set that amount appropriately. So, it makes the system work better for defendants who are required to obtain bail bonds as well.

And, the savings to taxpayers aren't the whole story. The pretrial release program also allows thousands of criminal defendants to escape the need to pay bail bond fees, allowed hundreds of criminal defendants to be free pending trial, and helped many of these defendants hold onto jobs they otherwise would have lost. As a result of pre-trial release, the accused are punished after they are found guilty and only if they are guilty, not before they are found guilty or are acquitted.

17,000 days in jail. That's how many bed days were saved last year by the enhanced Pretrial Release program funded by the Crime Prevention and Control Commission. At a cost of just over $160,000, the program eliminates the need for over 50 beds per year, saving about $60,000 in construction costs and $22,000 in operating costs per bed.

[T]he Southern District of Iowa was able to substantially increase the utilization of alternatives to detention resulting in a pretrial release rate increase of 15% while assuring court appearance and community safety. In fact, the increased pretrial release rate was accompanied by an increase in court appearance rate by 2.6% and decreases in both new alleged criminal activity rate (1.7% decrease) and revocations due to technical violations (2.8% decrease) for defendants released pending trial.

Alternatives to pre-trial release on personal recognizance include statutory fines (or court contempt power policies) for failure to appear, so that only non-compliance individuals are punished.

Colorado passed HB 13-1236 on May 11, 2013 with a goal of reducing pre-trial incarceration.

Where flight, and not further harm to the public are at issue, techno-corrections measures like ankle tracking bracelets could be used in lieu of pre-trial incarceration.

It also wouldn't be stunningly expensive to establish a non-profit to post bond for indigent individuals in cases where the amount is modest relative to the charge faced at trial to allow them to avoid costly detention.